Saturday, July 31, 2010

More on the ADA’s 20th Anniversary

"In recent months a New Jersey jury ordered a rheumatologist to pay $400,000 for not providing a deaf patient with a sign language interpreter at his own expense; the Ninth Circuit ruled that the law may require movie theaters to provide captions and descriptions for blind or deaf viewers; a federal appeals court ruled that the nation’s paper currency unfairly discriminates against the disabled and must be redesigned (thus taking a different view from the National Federation of the Blind, which doesn’t think there’s a problem); a police dispatcher won a settlement in her lawsuit saying she was unfairly discriminated against because of her narcolepsy (tendency to fall asleep at inappropriate times); a large online tutoring service agreed to provide interpreters; miniature golf courses learned they will have to make 50 percent of their holes accessible to wheelchair users; and so forth."

13 Comments:

I hate to say it, but all of these egregious abuses stem from the court system, also known as the tort system.

If you do not want regulations governing commercial transactions, then what is foul play is often is left up to the courts. People seek remedies in court, real or perceived.

Personally, I think the courts are poor places to resolve business matters, and that situation is worsened by the fact that judges and lawyers have no concept costs, or the costs they are imposing on society.

Lawyers think money and wealth comes from lawsuits.

BTW, you can almost always avoid any personal liability by forming a corporation. The corporate shield is a marvelous fiction, and ensconced behind it, you are nearly impervious. Just keep few assets in the corporation, and declare bankruptcy if met with untoward judgments.

Would you prefer people to resolve their business disputes with knives and guns? If you hire a lawyer who doesn't understand the business he's representing, you've hired the wrong lawyer. The ADA does produce some terrible court decisions, but don't forget that it's the legislation itself that is poorly drafted and not necessarily the courts' interpretations that lead to many bad decisions. Some state court systems are actually starting to come down hard on bogus ADA claims, but we do have a long way to go. The best way to fix the problem is to change the legislation so that only those who are truly disabled and discriminated against are afforded relief.

Bleeding hearts believed that the Americans with Disabilities Act would end job discrimination faced by the disabled. Researchers have found the opposite impact.

Thomas De Leire, associate professor of public affairs and population health sciences at LaFollete University, researched employment levels of the disabled and the general population before and after the ADA. He also studied claims against employers resulting from the enforcement of the ADA. De Leire concludes:

"ADA is a striking example of the law of unintended consequences. ADA has reduced employment opportunities not only for disabled people as a whole but especially for the most vulnerable groups—the young (less experienced), less educated (less skilled), and mentally disabled - groups that find it most difficult to get jobs."

Based on what I've read, the biggest cost to businesses of the ADA is not the judgments won by the disabled and their lawyers. Rather, it is the cost to business of defending legal action which ultimately proves fruitless. It is much less costly for a plaintiff to file suit against an employer than it is for the employer to defend that lawsuit. Plaintiff lawyers only have to win a small percentage of the time to be ahead in this game.

The burden is not so great for large businesses, who have talented legal staffs available for their defense. But the small businesses of America do not enjoy the economies of scale which would allow for full time representation. The leas expensive solution for small business: simply find ways to avoid hiring the disabled.

I agree there are ADA abuses and those should be dealt with, but what is the percentage of ADA cases filed per year against how many businesses in the U.S. per year? Is it really a wide-spread problem?

We can consider the lost court cases, the cost of defending a winning case, and all the associated costs for compliance. Next, take how many improvements/benefits have been made due to the ADA that would not have been made without this hammer (ADA)--that's going to be hard to do.

Whether you consider it a net cost or a net benefit might boil down to whether you are a business owner who got sued for an ADA violation or a person in a wheelchair who has to take a shit but has to go in his pants because he can't get his wheelchair into the bathroom.

I get it. The reality is business has to deal with the ADA if and until the law changes. Are you proposing an overthrow of the government? I used to be a radical myself and write for the Flint Voice in the 1970s, but I aged gracefully:)

I sit on advisory boards with contractors and other small business owners. In over 4 years of monthly meetings, none of the 20 or 30 owners have complained about the ADA. The order of complaints: 1) workman's comp, 2)family medical leave act (FMLA), and 3) Health insurance portability act (HIPPA).

Unlike the average citizen, business get sued everyday and it is considered a cost of doing business (CDB). Good businesses do not freak out. The trick is to change uncertainty that cannot be quantified into risk that can. You then do a risk analysis to determine your strategy.

I don't consider looking at Web pages research. I think any analysis of businesses that get sued needs to be compared to the ones who do not.

Wow! That's a good one. I don't like it either, Walt, because it's not correct. Read that section again more carefully.

Actually, you need to read just a little further down to reach the good stuff. In fact, let me help you: try Article 1 Section 8. there you will find listed every power Congress has. That's all of them, there are no more.

Just to make it crystal clear, the Founders included a bill of rights, including the 10th Amendment, which points out that any power not affirmatively granted to the federal government, was reserved to the States, and to the people.

Try reading the whole document. It's really short. It's nothing like the thousands of pages of unreadable garbage spewing from Congress these days that must be passed so we can find out what's in it.

Keep in mind, that the US Constitution as written was intended to RESTRICT federal government in every way possible, to the very few functions almost everyone agreed would be best managed at a federal level instead of by each individual state.

You know, Walt, I've searched all through it, and NOWHERE can I find any mention of ADA, or anything at all about disabled people, or wheel chairs, nor is there any mention of authority to deal with those things.

Look for yourself, and see what you can find. Please don't make the mistake of tripping over the phrase "general welfare" in the Preamble. That argument doesn't work as some who are ignorant of the context think it does.

You seem fond of pointing out that the rules are what they are, and if we don't like them we should work at changing them. Well, at the above link you'll find the original framework of rules from which all others come. If you don't like it, you should work to change it. There's even a nifty amendment process just for that purpose. It's worked well in the past.

Walt G:"a person in a wheelchair who has to take a shit but has to go in his pants because he can't get his wheelchair into the bathroom."

The abuses resulting from the ADA do not have a damned thing to do with someone in a wheechair not being able to get a wheelchair into a bathroom. If the bleeding hearts would have stopped there - if this bill had only been about accessibility - very few lawsuits would ever have been filed, very few truly handicapped persons would have seen their job prospects decline. But the bleeding heart do-gooders just had to include sweeping changes to hiring laws and accomodation laws which are - quite frankly - outrageous. Actually, the laws themselves weren't so outrageous as they were vague - which left it up to bureaucrats and courts to determine what was acceptable and what was not.

Walt, you are trying to build your case for the ADA on a tiny part of the Act dealing with its only defensible mandate. I do not believe that anyone objects to a mandate that restrooms be made accessible. But many of us who have been and are employers object to the inclusion of mental illness in the act. Many if us object to the inclusion of "bad backs" as a disability which must be accomodated. Many of us object to the requirement that the hearing disabled be provided interpretors at a cost to employers which will usually exceed the value of the employee to the firm.

The businesses of America are definitely not the only ones who are bearing the costs of the ADA. The truly disabled have seen their job opportunities reduced - and the bleeding heart do-gooders are to blame.

"The reality is business has to deal with the ADA if and until the law changes. Are you proposing an overthrow of the government?"...

Well in a word Walt G, 'YES!'...:-)

"I used to be a radical myself and write for the Flint Voice in the 1970s, but I aged gracefully:)"...

Well amigo I never was a radical in the sixties and seventies myself and I can't say that I've aged gracefully...:-(

"I agree there are ADA abuses and those should be dealt with, but what is the percentage of ADA cases filed per year against how many businesses in the U.S. per year? Is it really a wide-spread problem?"...

Well Walt G theft is theft and the ADA scam foisted off onto the productive by the federal government is really nothing short of theft whether its one business or a million of them...

" Next, take how many improvements/benefits have been made due to the ADA that would not have been made without this hammer (ADA)--that's going to be hard to do"...

Absolutely ZERO! ZILCH! NADA! sir...

Those weren't improvements Walt G, those were a scam train that even the state and local government got in on and were able to steal their piece of the action...

"Whether you consider it a net cost or a net benefit might boil down to whether you are a business owner who got sued for an ADA violation or a person in a wheelchair who has to take a shit but has to go in his pants because he can't get his wheelchair into the bathroom"...

Walt G its not the job or the responsibility of the business owner to with the individual problems of his customers...

Now if a business person wants to voluntarily make the changes then the those who need these changes will take their business (and money to that particular business...